Board of County Com'rs of Larimer County v. Conder, 95SC431
| Decision Date | 09 December 1996 |
| Docket Number | No. 95SC431,95SC431 |
| Citation | 927 P.2d 1339 |
| Parties | 20 Colorado Journal 1777 The BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Courtlyn Hotchkiss, James Disney and Janet Duvall, County Commissioners, Petitioner, v. Steve CONDER and Wendy Sommervold, Respondents. |
| Court | Colorado Supreme Court |
Harden, Schmidt, Hass, Haag & Hallberg, P.C., George H. Hass, Jeannine S. Haag, Larimer County Attorney's Office, Fort Collins, for Petitioner.
John H. Chilson, Loveland, for Respondents.
This case presents the issue of whether a county can adopt a requirement in its subdivision regulations that subdivision proposals comply with the county's master plan provisions, and then rely upon non-compliance with master plan provisions in denying a subdivision application. The Board of County Commissioners of Larimer County denied the application of Steve Conder and Wendy Sommervold for a proposed subdivision in rural Larimer County. On certiorari review under C.R.C.P. 106(a)(4), the Larimer County District Court affirmed the denial. Conder and Sommervold appealed, and the Colorado Court of Appeals reversed, holding that the Board of County Commissioners acted arbitrarily, capriciously, and abused its discretion in denying approval of the subdivision application. Conder v. Board of County Comm'rs of Larimer County, No. 94CA0848, slip op. at 4, 6 . We granted certiorari to review the court of appeals' decision and now reverse and remand with directions.
Steve Conder and Wendy Sommervold (proponents) propose to develop a 560.76 acre parcel in the southern part of Larimer County into the "Windemere Acres Subdivision" (Subdivision). The proponents seek to divide the property into fifty-six lots, generally ranging in size from 2.3 to 5.4 acres, with nine perimeter lots larger than thirty-five acres. The parcel that the proponents intend to subdivide is zoned FA-1, a "Farming District." Larimer County's "Comprehensive Zoning Resolution" permits single family dwellings with minimum lot areas of 100,000 square feet 1 in areas zoned FA-1. 2 The Larimer County Land Use Plan, which is the master plan for the County, categorizes the area in which proponents' parcel is located as "rural." Larimer County Planning Department, "Planning Staff Report" at 26 (Aug. 23, 1993).
The proponents filed a subdivision application in November of 1992. 3 The Larimer County Planning Commission (Planning Commission) held a hearing to review the application on December 16, 1992, and the Larimer County Planning Department (Planning Department) recommended that the Planning Commission deny the application. 4 The proponents attempted to address the concerns of the Planning Department at the hearing:
[The proponents] wanted to point out that their desire is to keep this area rural and attempted this by surrounding the sub-division by 35 acre parcels. These parcels will have recorded covenants also which prohibit more than one residential residence, and are also controlled by the subdivision's architectural control committee in regard to fencing, home size, and construction of any out buildings.
Larimer County Planning Commission, "Minutes" at 7 (Dec. 16, 1992). The Planning Commission, with one of the six commissioners abstaining, unanimously voted to deny the proponents' subdivision application, primarily based on the perception that the Subdivision would not be compatible with a rural location.
The proponents responded by submitting a revised subdivision application in May of 1993, attempting to address the concerns of the Planning Department. One of the changes that the proponents made was to include the nine lots that were greater than thirty-five acres within the Subdivision boundaries, so that the average lot size for the Subdivision increased to approximately ten acres. 5
The Planning Commission considered the proponents' revised subdivision application on July 21, 1993, and recommended that the Larimer County Board of County Commissioners (Board) deny the application. The Planning Commission adopted the Planning Department's findings that "[t]he proposed Preliminary Plat is not consistent with the Larimer County Land Use Plan in location of the proposed use, intensity of use, design, consolidation of services, and maintenance of rural character." Larimer County Planning Commission, "Minutes" at 6-7 (July 21, 1993) ().
On August 23, 1993, the Board considered the revised subdivision application in a public hearing. The "Agenda" for the meeting included two "major issues and concerns" regarding the application:
1. The primary concern with the proposal, and the reason the Planning Department recommended denial on the first request, remains the same. The project is located in a rural agricultural area of Larimer County. The proposed subdivision appears suburban rather than rural in character. The Larimer County Land Use Plan guidelines for rural development emphasize low-intensity design that consolidates services and maintains large blocks of open space. Despite the reduced number of lots, only about 10% of the proposal is common open space. Planned Unit Developments, for example, require a minimum of 30% open space.
The Land Use Plan states that because of lack of services, rural areas are generally inappropriate for subdivision activity. Adequate facilities should be provided without subsidy by other County residents and the County should not be obligated to provide an urban level of service outside designated urban areas. The Planning Department is concerned that this intensity of development will negatively impact provision of services in the area and create expectations for an urban level of service where it cannot be realistically provided.
2. Inclusion of some of the surrounding 35 acre tracts in the subdivision boundary may create more problems than benefits. These tracts are not integrated into the subdivision road system and apparently will be accessed by easements and private roads, or directly from the County Roads. The existing access to some of these tracts is very poor. The Planning Department is concerned that all subdivision lots meet County subdivision standards.
The applicant may believe that inclusion of the 35 acre tracts is beneficial as it reduces the average lot size for all lots to approximately 10 acres. Plat notes indicate a belief that this somehow makes the subdivision "rural." The Planning Department sees no difference in the impact of the development between 35 acre tracts inside the subdivision or surrounding it.
See Larimer County Board of Commissioners, "Agenda" (Aug. 23, 1993) ("major issues and concerns" for "Agenda" outlined in attached Larimer County Planning Department, "Planning Staff Report" at 26 (Aug. 23, 1993)).
After a hearing, the Board voted unanimously to deny the subdivision application. In rejecting the application, the Board issued written findings, determining that the proposed subdivision was inconsistent with the Larimer County Land Use Plan in several specified respects--in general, because the nature of the proposed development was not consistent with the contemplated rural character of the area. 6 The Board also quoted essentially verbatim the Agenda's aforementioned "major issues and concerns," supra pp. 1341-42, with regard to inadequate services for the Subdivision and the proponents' inclusion of the thirty-five acre tracts within the Subdivision's boundaries.
The proponents then sought a declaratory judgment and review of the Board's decision pursuant to C.R.C.P. 106(a)(4) in the Larimer County District Court. 7 The court affirmed the Board's decision based on two grounds. First, the court determined that although "incompatibility with the [master] plan weighed large in the minds of the commissioners," the Board based its denial of the subdivision application on "other concerns" as well. Second, the court held that "reliance on or reference to the comprehensive land use plan" was an appropriate basis for the Board's decision. In affirming the Board's denial of the subdivision application, the court rejected the proponents' constitutional due process claims and held that the proponents had adequate notice of the need to comply with the master plan provisions and that the plan contained sufficiently specific guidelines "within the ordinary understanding of reasonable people." 8
The proponents appealed, and the Colorado Court of Appeals reversed, holding in an unpublished opinion that although the Board "could properly utilize the master plan as one factor in evaluating [the proponents'] application," the Board "acted arbitrarily, capriciously, and abused its discretion" in denying that application because "there was no competent evidence in opposition other than mere assertions that the proposal was inconsistent with the master plan." Conder, No. 94CA0848, slip op. at 4, 6. We then granted the Board's petition for certiorari review. 9
In determining whether the Board properly denied the proponents' subdivision application, we are guided by principles of appellate review applicable to C.R.C.P. 106(a)(4), which provides for relief by appropriate action in district court:
(4) Where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law:
(I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.
In determining whether a body or officer "exceeded its jurisdiction or abused its discretion," C.R.C.P. 106(a)(4)(I), the district court in this case correctly...
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